The (still) uncertain state of video game streaming online

"As an industry, we don't really follow the law and we all do it."

In September of last year, the developer of Firewatch issued a DMCA takedown against now infamous YouTuber PewDiePie after he used a racial slur during a live stream of another title. The incident didn’t make headlines only because of PewDiePie’s profile or the fact that the game Firewatch wasn’t directly involved—this also represented a rare instance of legal rights being asserted between game maker and game streamer.

As much as video games are an interactive medium, in recent years an entire scene has grown out of people such as PewDiePie streaming video games online. Be it live streaming on Twitch, or Let's Plays or other types of video content on YouTube, gaming has gone from just something players do at home, to something that they also watch other people do online.

Further Reading

As these streamers and personalities have grown in popularity, so too has the discussion over the rights of streamers and developers in regards to said content. Are streams covered under fair use with content creators allowed to make money off of them? Or should the original creators of the games have a say in how their products are used in the public eye, not to mention a chance to generate profit? Developers like Ubisoft and Microsoft have shown a willingness to work with creators and encourage game streaming (and earning). Nintendo, on the other hand, is known for enforcing its copyright in this area. Atlus, too, received pushback surrounding the company's initial policy for streaming Persona 5.

To attempt to dig into all sides of the debate, we cast a wide net. However, YouTube declined to make anybody available on the record, and Twitch passed on being involved, as well. On the developer side, Campo Santo offered a small statement in support of streamers but preferred to have no further involvement. Riot Games pointed to its legal page, saying it had nothing else to add.

We did talk to streamers—and a lawyer—to get a look at their sides of the situation, capturing a picture of some of the current schools of thought surrounding streaming video-game content online and what it may take to change the way things are now. But today, streamers continue to pump out videos, just as developers continue to create games, even if streaming’s future is uncertain.

An example of Naka Teleeli's work (on the classic Majora's Mask)

An advertising-arial relationship

Naka Teleeli posted his first video in 2008. In one of his videos about Wonder Boy: The Dragon’s Trap, Teleeli informatively presented history about the series before going into his epic narration of the game’s intro text. He mostly does Let's Play—where he’ll play a game while providing audio commentary—videos, with a focus on somewhat retro games and indie titles. Currently, he has almost 40,000 subscribers on YouTube.

"I understand that legally it's a very grey area, and there's been a lot of arguments for both sides that all the content being shown is actually owned by the original person, or it's transformative, and I honestly understand both sides of the story, because all the content you're seeing is indeed owned by someone else, they made this content,” Teleeli says. “But at the same time, I also see it as transformative."

One reason he sees it as transformative is because viewers who watch videos aren't playing the game. While the literal imagery being viewed may be the same—whether playing the game or watching someone else do it—the input experiences are different.

"The whole point of games, is to play them," Teleeli says. "Removing that, and then on top of that adding in our own commentary, our own reactions, the way we progress through the game and react to what's going on, I think that's very transformative ... If you think about it, watching a Let's Play is not even remotely the same thing as playing the game yourself.”

While he may see the experiences as different, Teleeli added that most of the content being seen is still the same and that he can see both sides. “Personally, I'm of the opinion that I think some kind of middle ground, legal middle ground, would be nice," he says.

Even though he does consider Let's Plays as a legal and transformative thing that is allowed, that aspect of the business remains a worry for Teleeli. "If somebody sets their mind to it, it's very easy to get a channel taken down," Teleeli says. And to a degree, the streamer agrees that developers should have a legal right to control their game footage, though he doesn't agree with "how some things are flagged and why." And while Teleeli hears stories about people watching videos instead of playing a game personally, he doesn’t feel those were lost sales: such a person probably wouldn’t have purchased the game anyways.

"I've also heard any number of people that say they have gone out and bought a game, because they saw me playing it," Teleeli. "So, if we think of it as an advertisement, I actually think it fits very well.”

“I think the more open developers are working with people making videos for their games, the better, because these are people that are, in my opinion anyway, advertising their games," he says.

And while Teleeli thinks that content creators should be friendly and outgoing, he also thinks that they should keep control over streams made with their products.

"The biggest thing that I want is things mostly to stay how they are, only with the developers and content creators simply being more forthcoming and cooperative," he added.

151 Reader Comments

A frisbee is an interactive device, possibly with some copyrighted logos on it. If I make a stream of me playing frisbee, does that infringe? I think I'd say no.

More complicatedly, involving lots of engineering, software, and moving parts: A drone or model airplane are interactive devices, often with copyrighted logos on them. If I make a stream of me playing with my drones or R/C aircraft, does that infringe? I think I'd say no.

No idea if a judge would see it the same way though. If a game maker, who is essentially selling a toy, can say "you cannot stream a video showing you playing with our toy", that seems pretty slippery towards other people having control over what you can put up and share.

Edit: Been pointed out that logos are generally trademarked, _not_ copyrighted, which significantly nulls my point.

"And while Teleeli thinks that content creators should be friendly and outgoing, he also thinks that they should keep control over streams made with their products."

What a Wanker. Because what we need is more control and oppression of creative output. Just because you coat it in words like friendly and cooperative doesn't change anything. If game developers "control" streams then they by definition have the power to block videos they don't like. Which is a terrivle idea. Which actually fits well into the censorious corporate ad friendly agenda Google us driving. Please don't offend anybody... What a croak.

In a world where some game devs/producers make reviewers sign NDAs to NOT release reviews of games until after the first day of it being released the only way of finding out if a game is crap before buying it is to watch a streamer.

A frisbee is an interactive device, possibly with some copyrighted logos on it.

First of all, a logo isn't copyrighted, it is trademarked. Different kinds of laws apply, so your analogy is so far off it isn't even worth discussing.

Second, a straight up "Let's play" video is one thing, but looking at the videos being produced, there are an awful lot of videos where someone uses a gameplay session to push some kind of totally unassociated commentary. This should be considered copyright infringement right away. It is not a review, it is not a comment on the actual game and it is just to promote the person creating the video. Let that person create their own backdrops instead of ripping of some one elses work. Fair use do not apply here at all.

Also good review or commentary doesn't show you straight up gameplay with loading screens etc, it shows highlights that illustrates things you want to convey with the review or commentary. If you want to do it, do it right, don't be lazy and just rip off other peoples work to get more views/ad revenue.

In a world where some game devs/producers make reviewers sign NDAs to NOT release reviews of games until after the first day of it being released the only way of finding out if a game is crap before buying it is to watch a streamer.

Sure, but do the streamers actually stream their games BEFORE being released? No, they don't so your reasoning fails.

Having said that, game journalism is laughable, most of it falls short of journalism and should be called bought advertising. That studios can ban publications from reviewing a game because a previous game got an unfavorable review should be illegal. Journalists should be able to say whatever they thing about a game before or after it has been released. If you release a crappy game and it shows in your pre-release review copy, you deserve bad press.

If game publishers enforce copyrights to shut down streamers and YouTubers, they'll generally be shooting themselves in the foot. The exception might be when their game is crap and viewers can see that first-hand, so that potential sales are lost. In most cases, streams probably do a lot to sell more copies of games if the games are worth it. I've watched Twitch streams to see gameplay of new games which resulted in my purchasing a game that wasn't on my radar. But I've also done the opposite, e.g., where I was planning on buying Activision/Bungie's Curse of Osiris DLC for Destiny 2 but changed my mind after watching streamers on Twitch. The streamers weren't being critical of the DLC, but I could see it wasn't something I wanted to purchase.

But even if you broke some law, you might be protected by "Right to repair" depending on where you live. If you want a definite answer, seek the counsel of an appropriate lawyer.

Ultimately, does it apply in this case? You replaced a broken part of YOUR property for your purpose. You don't get ad revenue or fame for showing it to others.

I see four scenarios where publishers/game creators would like to restrict streaming:

- The video would reveal game play plots that are essential to the story and that would spoil the game experience for players.- The video gives a bad review for the game and would diminish sales.- The video has little or nothing to do with the game at all, and is mainly made to push some message using the gameplay as a pretext to talk about something entirely different.- The person creating the videos have a bad reputation that the creators of the game does not want to be associated with.

I think most of us think the first is bad form, don't spoil the fun for your fellow gamers. The second is stupid, a review is a review, and if you create a bad game you deserve to get some bad reviews.

But the two last are what I believe should be up to the publisher/game developer, even if it would hurt their sales. If you want to make a statement, don't use someone elses unrelated work to push it. And if you do controversial statements, don't expect everyone to back you up. Better then to rely only on your own creations.

I see convoluted legal arguments being successfully promulgated these days, so try this one on for size. The DMCA, by allowing these arbitrary take-downs, is restricting the speech of those who are taken down, and is, therefore, unconstitutional (b/c of that whole 1st amendment thingy). Just wish I had a gigantic pile of money and a squad of bored lawyers to see if I could make it stick...

Also, can we vote PewDiePie off the internet? Never understood why that guy got popular.

I think they have a case if you simply rip sequential gameplay and make money off streaming it, because it essentially competes with the copyright-holder for one intended use of the work. I have streamed a few plot-heavy games rather than bought and played them - Dragon Age: Inquisition is one example. (Of course, I also used youtube-dl and MPC-HC w/K-lite to get efficient, high-quality playback quality on my 2011-era AMD netbook, which happens to bypass the ads...)

If they're doing stuff like "this is how to play the game well" or even "here's what I think about the game" there's a far greater argument that their work is transformative and is therefore fair use.

Remember also that copyright is intended to help content creators make money and ensure that services in demand are provided. Stopping people from exploiting the material in a manner that the original provider doesn't intend to serve may, in some venues, be seen as not in the public interest. (This may be one reason Nintendo developed its streamer program - although it seems kinda like penny-pinching, it preserves their rights more than not doing anything.)

I see convoluted legal arguments being successfully promulgated these days, so try this one on for size. The DMCA, by allowing these arbitrary take-downs, is restricting the speech of those who are taken down, and is, therefore, unconstitutional (b/c of that whole 1st amendment thingy). Just wish I had a gigantic pile of money and a squad of bored lawyers to see if I could make it stick...

Also, can we vote PewDiePie off the internet? Never understood why that guy got popular.

I remember reading somebody actually promoting the idea that copyright itself was incompatible with the 1st, it might have been the Volokh Conspiracy. Historically, copyright was used by the crown as a "perk" they offered printers to control them, so there's a bit of a case there.

Realistically not going to change any time soon, but it's easy to forget just how weird copyright is. The idea that you can use the government to force someone else not to express their thoughts on your thoughts, on ANY level, because you'd like to make some dosh, is just bizarre.

I see convoluted legal arguments being successfully promulgated these days, so try this one on for size. The DMCA, by allowing these arbitrary take-downs, is restricting the speech of those who are taken down, and is, therefore, unconstitutional (b/c of that whole 1st amendment thingy). Just wish I had a gigantic pile of money and a squad of bored lawyers to see if I could make it stick...

Also, can we vote PewDiePie off the internet? Never understood why that guy got popular.

I remember reading somebody actually promoting the idea that copyright itself was incompatible with the 1st, it might have been the Volokh Conspiracy. Historically, copyright was used by the crown as a "perk" they offered printers to control them, so there's a bit of a case there.

Realistically not going to change any time soon, but it's easy to forget just how weird copyright is. The idea that you can use the government to force someone else not to express their thoughts on your thoughts, on ANY level, because you'd like to make some dosh, is just bizarre.

A frisbee is an interactive device, possibly with some copyrighted logos on it. If I make a stream of me playing frisbee, does that infringe? I think I'd say no.

More complicatedly, involving lots of engineering, software, and moving parts: A drone or model airplane are interactive devices, often with copyrighted logos on them. If I make a stream of me playing with my drones or R/C aircraft, does that infringe? I think I'd say no.

No idea if a judge would see it the same way though. If a game maker, who is essentially selling a toy, can say "you cannot stream a video showing you playing with our toy", that seems pretty slippery towards other people having control over what you can put up and share.

I agree with you on what I would say is or isnt copyrigth infringement, however software is a different thing. Specially if you consider that in the last couple of decades you are not sold the software, you are escentially renting the right to use it. Licences are just that, you no longer own the software.

In a world where some game devs/producers make reviewers sign NDAs to NOT release reviews of games until after the first day of it being released the only way of finding out if a game is crap before buying it is to watch a streamer.

Or maybe we (myself included) should stop buying games at release and wait to see what might come up? Could put more pressure on the devs to make better games at release.

I see convoluted legal arguments being successfully promulgated these days, so try this one on for size. The DMCA, by allowing these arbitrary take-downs, is restricting the speech of those who are taken down, and is, therefore, unconstitutional (b/c of that whole 1st amendment thingy). Just wish I had a gigantic pile of money and a squad of bored lawyers to see if I could make it stick...

Two points:

1) This isn't even necessarily about the DMCA. Sites like YouTube and Twitch are privately owned and can run their own takedown procedures that are broader than the DMCA requires. While it might be morally wrong by some argument, it's not really a free speech issue, because YouTube isn't legally obligated to host any of your content.

2) You can accomplish speech without using copyrighted content, and free speech is baked into fair use, so your constitutionality argument would be limited to whether a DMCA takedown unreasonably suppresses fair use. Please litigate that all you want, I support it. But you're not going to get the whole law struck down, at best it'll be a court ruling "clarifying" the DMCA must always be construed to protect fair use.

A frisbee is an interactive device, possibly with some copyrighted logos on it. If I make a stream of me playing frisbee, does that infringe? I think I'd say no.

More complicatedly, involving lots of engineering, software, and moving parts: A drone or model airplane are interactive devices, often with copyrighted logos on them. If I make a stream of me playing with my drones or R/C aircraft, does that infringe? I think I'd say no.

No idea if a judge would see it the same way though. If a game maker, who is essentially selling a toy, can say "you cannot stream a video showing you playing with our toy", that seems pretty slippery towards other people having control over what you can put up and share.

I agree with you on what I would say is or isnt copyrigth infringement, however software is a different thing. Specially if you consider that in the last couple of decades you are not sold the software, you are escentially renting the right to use it. Licences are just that, you no longer own the software.

It would be interesting to see the question of the validity of using copyright law to enforce the selling of licenses rather than selling copies explored in courts.

I agree with you on what I would say is or isnt copyrigth infringement, however software is a different thing. Specially if you consider that in the last couple of decades you are not sold the software, you are escentially renting the right to use it. Licences are just that, you no longer own the software.

Also, can we vote PewDiePie off the internet? Never understood why that guy got popular.

While I agree with the sentiment, this is an ironic comment to include in a screed about censorship.

The difference between society and government - by 'vote x off the internet' I mean 'everyone stop paying attention to x' instead of 'somehow actually bar x from using the internet'. These things only have power and influence because we allow them to command our collective attention.

So even while it is interesting to discuss this topic, let us use the correct terminology, apply the correct laws etc.

Yeah, good point. In fact, the analogy seems a lot different and murky once we're talking truly copyrighted stuff.

If I have a "let read" stream going through a book, is it infringement? It probably is if I say every single word.

Or are gameplay videos more like a retelling/synthesizing? Since no gameplay video is going to be the same, maybe that argument works. In the end, it's likely that there's no truly analogous example, which is why this is a grey area in the first place.

Realistically not going to change any time soon, but it's easy to forget just how weird copyright is. The idea that you can use the government to force someone else not to express their thoughts on your thoughts, on ANY level, because you'd like to make some dosh, is just bizarre.

That idea is "bizarre" and incompatible with the First Amendment... which is why the courts read a commentary exception into copyright law many years ago, and also why Congress eventually codified it into the copyright statute. It's called the fair use doctrine.

Also, can we vote PewDiePie off the internet? Never understood why that guy got popular.

While I agree with the sentiment, this is an ironic comment to include in a screed about censorship.

The difference between society and government - by 'vote x off the internet' I mean 'everyone stop paying attention to x' instead of 'somehow actually bar x from using the internet'. These things only have power and influence because we allow them to command our collective attention.

That's a fair distinction to make, and I agree. The First Amendment doesn't guarantee you that other people must listen to you.

I think the substantiality of the taking is going to be significant. Namely: if you remove the interactive component, is the resulting product a non-substantial taking, and would that generally support a fair use analysis?

The soundtrack component always kills me, because it’s the trickiest part under the fair use analysis, but the soundtrack can be argued to be incidental, or likewise lacking a fundamental interactive component. Or maybe de minimis, since it’s a small component of a non-linear established work.

Involuntary partial monetization by the platform, could push the question back another 5 years or so. Does Twitch not do it? The more this thing becomes the norm, the more likely the right judge will reach the right decision. Or we could get a legislative fix together eventually.

I feel like most of the problems with YouTube would go away if video creators got a fixed percentage regardless of monetization claims. YouTube has the clout to enforce that in exchange for access to ContentID (assuming the contractual arrangement associated with using ContentID and other platform enforcement tools hasn’t changed in the last three years). Could be not far off, but with YouTube’s inscrutable management, who the fuck knows.

You know, I gave YouTube a lot of shit for making tools to help creators. Under CDA 230, they didn’t need to do that. Felt like they were getting legal scared, despite having the resources to fight and get interesting caselaw. Now it seems like inserting themselves between IP owners and their users could allow them to create non-legal norms that benefit the user while appeasing the owner (if only because it’s worth submitting to the rules and remaining in YouTube’s good graces, rather than attempt to recover against users (since YouTube is still presumably CDA 230 insulated)...

A frisbee is an interactive device, possibly with some copyrighted logos on it. If I make a stream of me playing frisbee, does that infringe? I think I'd say no.

More complicatedly, involving lots of engineering, software, and moving parts: A drone or model airplane are interactive devices, often with copyrighted logos on them. If I make a stream of me playing with my drones or R/C aircraft, does that infringe? I think I'd say no.

No idea if a judge would see it the same way though. If a game maker, who is essentially selling a toy, can say "you cannot stream a video showing you playing with our toy", that seems pretty slippery towards other people having control over what you can put up and share.

I agree with you on what I would say is or isnt copyrigth infringement, however software is a different thing. Specially if you consider that in the last couple of decades you are not sold the software, you are escentially renting the right to use it. Licences are just that, you no longer own the software.

It would be interesting to see the question of the validity of using copyright law to enforce the selling of licenses rather than selling copies explored in courts.

You realize that copyright licenses work because the courts are willing to enforce them, right? This has been "explored" in the sense that courts decided they were enforceable a lifetime ago, and no one has presented a valid legal argument against them since then.

At this point, retroactively voiding copyright licenses would likely violate the takings clause of the Fifth Amendment. A legally recognized property right cannot be voided by the government without just compensation, and there is zero doubt today that copyrights and copyright licenses have established value. It would also wreak chaos by generating endless lawsuits to resolve the consequences. (If your Windows license is voided, do you get the money for your Windows license back? Do you have to stop using Windows immediately since you don't own the copyright and can't license it anymore?)

Good luck finding a federal judge who wants to be responsible for that mess. They'll defer you to Congress to modify the Copyright Act if you want the law to change.

If the streamer is actively talking about the game, then I would think the legal position is clear. Its a review, and thus clearly fits in fair use, or other exemptions in other jurisdictions.

Cool, I've been looking to find a way to make millions doing practically nothing, so I think I'll start burning BD-R's of major Hollywood movies with an added commentary track and sell them as "reviews."

Nothing to add to the discussion. Just want to say that the article title is a bit misleading, to me at least. I'm not into the Twitch scene, and clicked on the article expecting a story about some Spotify-like future where people don't actually buy the games but pay a subscription to have the games rendered by dedicated machines in the cloud and streamed over their internet connection (like that thing Nvidia currently does, except you don't have to own the actual game you want to play), not a story about watching someone's gameplay video. Then again, I'm only a casual gamer, so maybe I'm just out of the loop with all the terminology, in which case I apologize.

"I think the most legally accurate response right now is that Let's Play videos and most streams are derivative works and therefore infringing if you don't have a license from the publisher or game developer," Morrison says. But the attorney added that there is a fair use argument that streamers could make, but fair use is a defense that essentially admits to infringement and tries to explain why that use is OK.

Asserting fair use admits to use of a copyrighted work, but it does not admit that use is infringing. Section 107 of the Copyright Act specifically says that "the fair use of a copyrighted work ... is not an infringement of copyright."

But the result still recognizes that a DMCA takedown of something protected by fair use is legally invalid. And it recognizes that fair use isn't merely a defense to infringement--fair use is not infringement under the Copyright Act.

I understand that twitch and youtube declined to participate in interviews for this article, but I feel that they share an enormous legal burden with streamers derived from profits off of game streams.

Sony, also, includes game recording features *designed into the controller*, and additional software (sharefactory) for editing game footage, complete with official content "themes" made by the creators of many popular games.

I feel like one reason that DMCA was used as opposed to a formal lawsuit is because it provides these powerful interests with a safe exit strategy - remove hosted content, and you will not face legal consequences.

If a legal challenge was made which did not clearly exempt these parties from liability, I expect them to all side with streamers, both to protect profits and to have a court determine that they are not aiding infringement.